Busting legal myths for those who don’t understand Legalease! Episode 1: Common Law ‘Marriages’
- stephen4880
- Mar 27
- 4 min read
The Myth: “Everything is ‘OK’ we are ‘common law’ husband/wife and have lived together for over XX (Pick a number) years, so we have the same legal rights as married couples - or those in a civil partnership.”
The Truth:This couldn’t be further from the truth - there is no legal recognition in England and Wales of a "common law spouse" - cohabiting couples do not have the same legal rights as married couples, or those in a civil partnership, no matter how long they have lived together.
Why does this matter?
Because, potentially, there are serious consequences!
Q1. What happens on the death of one of partners?
Q2. How does the above effect where the couple lives?
Q3. What happens when the relationship ends?
1. Let’s deal with the one with no hope of change – death. If one partner dies without a will, the surviving partner is not entitled to inherit and has no rights to administer the estate under the ‘rules of intestacy’( here we go – first legalese - intestacy means someone died without a Will a partial intestacy is where part of the Will isn’t valid). The surviving partner has no automatic right to the deceased partner’s estate, or private pensions, unless specified in a pension nomination or scheme policy. Some partners can try to claim part of the estate if they can prove financial dependence, but they would need to have the funds to prove their claim.
2. Where the couple live and call their home, if only owned by one partner, means the other has no automatic right to the property or part of it! This is true no matter how long the couple have lived together – even if they have been paying towards the mortgage (this is deemed as rent and household bills the costs to live!).
If they separate the one partner can keep the home they solely own and if they die, it will pass to the owning partners family if the partner dies intestate. Also, if a couple own a property jointly as Tenants in common ( see explanation below) , they each own a specific share, so again if one of them dies intestate, that person’s share would not automatically pass to the partner.
3. Looking at, when the couple separate, there is no legal process to split what the couple individually own! This could be a reason why the couple never married, as they had been through the turmoil of a divorce and don’t want to experience it again, only to discover it is even worse for co-habitants. With the only legal recourse available, if they jointly owned a home, is possibly an application under Trusts of Land and Appointment of Trustees Act 1996 to enforce a sale to realise the equity in the property. A route that can be very costly, traumatic and not achieve the desired outcome.
Having children as an unmarried couple doesn’t change the above, and the one partner who is the primary carer for the children cannot apply for financial assistance for themselves should the relationship end. However, each parent has the same rights and responsibilities regarding their children as married couples, they have parental responsibility, obtained by the father if he is named on the birth certificate or through a parental responsibility agreement or court order. The rules for Child Maintenance are the same for cohabiting couples as they are for married couples.
So how can you help yourself?
FIRST don’t wait until the relationship ends, or for one of you to die – it will be too late!!
Make a will!
Make sure you both have a Will to make provision for the survivor, this doesn’t need to be at the expense of your children’s inheritance, you just need the right advice. Make sure you seek advice from a solicitor who has knowledge in Wills, property and family matters – it makes a huge difference, especially do not rely on unregulated, and unqualified providers!
Get a Cohabitation Agreement
This Agreement can outline how property, finances, and other assets will be managed during the relationship and in the event of separation. If properly drafted, and both parties have received independent legal advice, these can be legally binding and enforced through court.
Discuss the Property Ownership
If you can own the property jointly, then you have two options for joint ownership:
Joint Tenants: Both have equal ownership of the property and if one dies, their share automatically passes to the surviving partner.
Tenants in Common: Each partner owns a specific share of the property, which can be unequal, It is advisable to also have a Declaration of Trust to clearly set out what was agreed financially and the proportions of ownership, and can specify how the property is to be divided if the relationship ends.
The share each partner owns is distributed either according to intestacy rules to the deceased family, or if there is a Will - according to the Will.
My advice is - if budgets are tight - get a Will, and if you own property jointly, get a Declaration of Trust. A co-habitation agreement adds the belt and braces protection, and ensures you both enter a relationship knowing if the worst happens, you will both know where you are financially.
What does the future hold?
There is much talk about reforms of the law to give co-habiting couples the same rights as married couples, but this raises many issues: -
I How long do you have to live together to acquire legal status of “co-habiting” and how would the status be defined?
I Would any changes distort the line between cohabitation and marriage, reducing the incentives to marry or enter a civil partnership other than tax and benefit entitlements?
I Many argue that couples can get married or enter a civil partnership to enable them to have legal rights. If they chose not to, they take on the risks.
Life is not just about money, as you can’t take it with you when you die, but it does help pay the bills and is one of the most divisive issues and can tear apart family and friends.
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